Appeals court hears gun-sale reporting arguments

1/9/13 1:05 PM EST

As the White House was at work Wednesday crafting the next chapter in federal gun policy, a federal appeals court was dealing with the Obama administration's last major salvo on the issue: a rule requiring gun dealers in states bordering Mexico to submit data on multiple sales of semi-automatic weapons that use detachable magazines.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard arguments Wednesday morning from a pair of Arizona gun dealers who object to the semi-automatic rifle reporting requirement, which the Bureau of Alcohol, Tobacco, Firearms and Explosives instituted in August 2011 for dealers in Arizona, California, New Mexico and Texas.

Attorney Richard Gardiner told the judges that ATF has no statutory authority to require dealers to turn over the information, in part because current law doesn't require dealers to track whether guns are semi-automatic or have detachable magazines.

"The fundamental issue here is whether an agency, on its own, can impose a requirement Congress has not chosen to impose," Gardiner said during the roughly 40-minute argument.

"There's nothing in the statute requiring an owner, dealer or clerk to be knowledgeable" about which guns must be reported and which don't, Gardiner added. He also said the rule requires dealers to set up a system to track multiple sales to figure out if the same person bought a second or successive weapon in a five business-day period. "You've got to create a whole new records system," Gardiner complained.

The National Rifle Association is backing the dealers' lawsuit against the ATF policy, but is not formally a party to the case. The Newtown, Conn.-based National Shooting Sports Foundation also joined the suit.

At least two federal district courts have rejected challenges to the ATF reporting requirement, called a "demand letter." The three appeals judges gave no indication from the bench that they were more open to the gun dealers' arguments.

One judge, Harry Edwards, seemed hostile to some of those positions and sparred with Gardiner, interrupting him with phrases such as "Come on, counsel." Edwards summed up the dealers argument this way: "We are being made by the man to give information we're not required to keep."

While federal dealers are required to record the manufacturer, model and serial number of guns they sell, not all guns have model numbers and the recorded info doesn't instantly indicate whether the gun is covered by ATF's reporting requirement or not. "You can't tell in every instance," Gardiner said.

Despite his skepticism, Edwards said that if dealers were being asked to provide or consult information they truly didn't have then they had "a perfectly viable argument" on that point. But he said the dealers had not provided evidence to the district court that the rule caused that kind of confusion.

"This is really not an onerous requirement," Justice Department lawyer Michael Raab told the judges. He said that in most cases the model number of the weapon would tell dealers whether the weapon was covered. He also said ATF had not experienced "any flood" of inquiries or confusion about the rule.

Raab emphasized that dealers aren't being asked to record whether weapons are semi-automatic or have detachable magazines. "That is not what we are asking for. That's the narrowing criteria," he insisted.

Raab also noted that a judge in Texas concluded that any gun dealer "worth his salt is going to know" if a weapon is semi-automatic and uses a detachable magazine.

One of the judges on the panel made no bones about her ignorace about firearms as she posed question about whether the semi-automatic rifles ATF is interested in tracking are exotic or unusual. "I know nothing about guns. That's why I'm asking," Judge Judith Rogers said.

Gardiner told Rogers there are about 100 million semi-automatic rifles in the U.S.

The mass school shooting in Newtown, Conn., last month has reinvigorated gun control efforts at the federal level, but the import of the border-state reporting rule for that broader effort is unclear. In theory, the Obama administration could try to expand the policy nationwide. Gun control groups would like to see all multiple rifle sales reported to the federal government, just as all handgun sales are reported.

However, the third judge on the panel, Karen Henderson, noted that Congress has passed budget riders prohibiting a national gun registry. She noted that only about 7 percent of the gun dealers in the U.S. are covered by the ATF reporting rule.

However, legal filings by the government say that about 70 percent of the traceable weapons recovered at crime scenes in Mexico bought in the U.S. came from dealers in the four Southwestern border states covered by the reporting requirement. The Justice Department has argued that the geographically-focused ATF policy doesn't raise the issues that might be involved in demanding the records nationwide, including whether that kind of rule would require new authority from Congress.

Edwards was appointed to the court by President Jimmy Carter, Rogers by President Bill Clinton and Henderson by President George H.W. Bush.